Because the Pennsylvania Supreme Court has not yet addressed whether the MMA provides a private right of action, Judge Pappert was forced to “predict how it would rule.”
In a case of first impression in a federal court within the Third Circuit, Eastern District of Pennsylvania Judge Jerry Pappert ruled on a motion to dismiss that Pennsylvania’s Medical Marijuana Act (MMA) provides individuals with the right to bring discrimination claims against their employers based on their lawful use of medical marijuana. Hudnell v. Thomas Jefferson University Hospitals, Inc., No. 20-01621 (E.D. Pa. Sept. 25, 2020).
Donna Hudnell worked as a security analyst for Thomas Jefferson University Hospitals. She suffered from significant back pain and, in 2018, Hudnell’s doctor certified her for medical marijuana use to help alleviate the discomfort.
After working from home for a period of time and taking a medical leave of absence, Hudnell was required to take a drug test pursuant to company policy in order to return to work. In connection with the drug testing process, she provided copies of her prescriptions, including her medical marijuana card. The nurse administering the drug test informed Hudnell that her medical marijuana card had expired. Hudnell claimed that she renewed her card prior to the drug test and told the nurse that she scheduled an appointment with her doctor to be recertified. The nurse denied Hudnell’s request to resubmit her card once it was renewed. Hudnell subsequently completed the card renewal process and reported that she was recertified, but Jefferson terminated her employment for testing positive for marijuana without having a valid medical marijuana card.
The court dismissed Hudnell’s claims for violations of the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance for failure to exhaust her administrative remedies. The court then considered Hudnell’s claim that Jefferson violated the MMA’s employment discrimination protections for certified medical marijuana users.
The MMA provides:
No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.
See 35 P.S. § 10231.2103(b)(1).
Jefferson argued that Hudnell could not state a claim under the MMA because the statute does not provide a private right of action and, in the alternative, because Hudnell did not possess a valid medical marijuana card at the time of her drug test.
As Judge Pappert noted, “Whether the MMA implies a private right of action for employees alleging discrimination under Section 2103(b)(1) is an issue of first impression in our Circuit.” However, he recognized that the only state court decision to address the issue to date, Palmiter v. Commonwealth Health Sys., Inc., 2019 WL 6248350, at *13 (Pa. Com. Pl. Lackawanna Cnty. Nov. 22, 2019), held that the MMA provides a private right of action. The court also acknowledged several court decisions outside of Pennsylvania in Arizona, Connecticut, Rhode Island and Delaware that permitted private actions under state medical marijuana statutes that provide similar employment nondiscrimination protections for certified medical marijuana users, but do not expressly authorize a private right of action.
Because the Pennsylvania Supreme Court has not yet addressed whether the MMA provides a private right of action, Judge Pappert was forced to “predict how it would rule.” He applied the three-part test from Cort v. Ash 422. U.S. 66, 78 (1975), which is used to determine whether a statute implies a private right of action. The Cort test requires the court to consider:
First, is the plaintiff one of the class for whose especial benefit the statute was enacted, that is, does the statute create a… right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
In terms of the second factor (the most important), Judge Pappert concluded that “[t]he exclusion of a specific administrative enforcement mechanism suggests the legislature did not intend to bar a private right of action for Section 2103(b)(1).” With respect to the first factor, he also found that “there is no mistaking the General Assembly’s intent to protect employees from discrimination in Section 2103(b)(1).” Finally, under the third factor, the court concluded that an implied right of action was consistent with the underlying purposes of the legislative scheme because a private remedy is “consistent with the purpose [and] spirit” of the MMA.
Judge Pappert held that the Pennsylvania Supreme Court likely would find that the General Assembly intended to create a private cause of action for employment discrimination under the MMA. Accordingly, he denied Jefferson’s motion to dismiss Hudnell’s MMA claims and allowed them to proceed.
What This Means for Employers
The Hudnell decision is consistent with the recent trend of cases permitting applicants and employees to bring discrimination claims against employers under the state medical marijuana statutes, even where the statute does not expressly authorize a private right of action. As we also reported in an earlier Alert, courts in other jurisdictions have allowed other types of claims related to lawful medical marijuana use to proceed, such as in Wild v. Carriage Funeral Holdings, Inc., et al., A-3072-17T3 (N.J. Super. Ct. App. Div. Mar. 27, 2019), which held that an individual can state a claim for disability discrimination under the New Jersey Law Against Discrimination based on an employer’s refusal to accommodate legal, off-duty use of medical marijuana, as permitted by the New Jersey Compassionate Use of Medical Marijuana Act.
Notably, in addition to Palmiter, other claims involving similar fact patterns have been filed in federal and state courts in Pennsylvania.
For example, in Gsell v. Starline Holdings, LLC d/b/a Universal Electric Corp., No. 2:19-cv-01486-CB (W.D. Pa. filed Nov. 18, 2019), Gsell, a certified medical marijuana user, accepted a position with Starline, but failed the pre-employment drug test. Starline rescinded his employment offer, and Gsell claimed that Starline failed to hire him solely because of his medical marijuana user status, a violation of Pennsylvania public policy embodied in the MMA. The case settled. In Suber v. Pittsburgh Water and Sewer Authority, GD-19-016924 (Allegheny Cty. Ct. Comm. Pleas filed Dec. 3, 2019), which is currently pending, the plaintiff, a certified medical marijuana user, alleges that his employment was terminated after a positive drug test. Suber similarly claims that his former employer’s actions violated the clear mandate of public policy set forth under Section 2103(b)(1) of the MMA.
The Hudnell decision, against the backdrop of these other cases, both decided and pending, demonstrates the importance of employers analyzing the legal implications prior to taking adverse action against an applicant or an employee who is a certified medical marijuana user, even where the applicable state medical marijuana state does not expressly create a private right of action. Employers should further confer with their legal advisers to ensure that they are implementing appropriate policies and practices with respect to the disclosure that the individual is an authorized medical marijuana cardholder. For example, employers should implement procedures to follow in the event of a positive test, ensure that decisions are not made based solely on the individual’s disability or status as a medical marijuana cardholder, and engage in the interactive process on a case-by-case basis to determine if a reasonable accommodation can be provided that eliminates a direct threat to the health or safety of the individual or others.
For More Information
If you have any questions about this Alert, please contact Linda B. Hollinshead, Elisabeth Bassani, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any of the attorneys in the Cannabis Industry Group or the attorney in the firm with whom you are regularly in contact.
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